89 N.Y.S. 395 | N.Y. App. Div. | 1904
Lead Opinion
The complaint alleges that the plaintiff is the owner of a piece of property abutting on the easterly side of. Broadway, between One Hundred and Sixty-fourth and One Hundred and Sixty-fifth streets, in the city of New York; that on or about February 21, 1900, the city of New York, acting by the board of rapid transit railway commissioners, entered into a contract with the defendant for the construction and equipment of a rapid transit railroad upon the routes and pursuant to the general plan therein prescribed; that the said contract provided that the defendant should receive, in consideration for the said work, a large sum of money from the city; that the said routes and plan provided for the construction of the said railroad under the portion of Broadway upon which the plaintiff’s premises abut, at a depth of more than one hundred feet below the surface of the street; that the said contract contained provisions which were made for the benefit of persons whose property abutted on the streets in which said railroad was to be constructed, making the defendant liable to the owners of such abutting property, or of buildings or structures thereon, for damages thereto caused by improperly performing the work thereunder, which provisions were as follows:
“ The contractor admits and covenants to and with the City that the plans and specifications and other provisions of this contract for construction, if the work be done without- fault or negligence on the part of the contractor, do not involve any danger to the foundations, walls or other parts of adjacent buildings or structures; and the contractor shall, at his own expense, make good any damage' that shall, in the course of construction, be done to any such foundations, walls or other parts of adjacent buildings or structures. The contractor shall, during- the performance of the' work, safely maintain the traffic on all streets, avenues, highways, parks or other public places in connection with the work, and take all necessary precautions to place proper guards for the prevention of accidents, and put up and keep at night suitable and sufficient lights and indemnify and save harmless the City against and from all damages*216 or costs to which it may be put by reason of injury to the person or property of another or others, resulting from negligence or carelessness in the performance of the work or from guarding the same, or from any improper materials used in its construction, or by or on r account of any act or omission of the contractor or the agents thereof. The contractor shall be responsible for all damage which may be done to. abutting property or buildings or structures thereon by the method in which the construction hereunder shall be done, but not including in such damage any damage necessarily arising from proper construction pursuant to this contract, or the reasonable use, occupation or obstruction of the streets thereby. The contractor shall obey any order of the engineer to support or secure abutting property or any structure thereon; but the contractor shall not be relieved of responsibility by any failure or oniission of the engineer to give any such order or notice of any danger.”
It was further alleged that the specifications which were annexed to and made a part of the said contract also contained provisions which were likewise intended for the benefit of owners of abutting property, regulating blasting in tunnel excavations which required blasting to be conducted with all possible care and in such a manner as not to shatter the roof and sides outside of the section lines nor endanger adjoining property; that blasts should not be fired between the hours of eight p. m. and seven A. m. where tunnels are in front of private residences without the express ' permission of the board and under such restrictions as''it may impose. That prior to September, 1900, the defendant entered into a sub-contract with the firm of L. B. HcOabe & Brother, whereby the said firm agreed to construct the sections of said railroad known as Nos. 13 and 14, and which include that portion of said railroad which passes through the part of Broadway upon which the premises of plaintiff abut ; that during the month of September, 1900, the said firm, or persons acting under or by authority of their said sub-contract .with the defendant, entered upon and took possession of the portion of Broadway lying within the route designated by the said contract between One Hundred and Fifty-eighth and One Hundred and Sixty-eighth streets, and commenced to excavate the same for the purpose of constructing the said railroad; that the excavation was through solid rock, and was carried on by means of blasting which
It was further alleged that the plaintiff’s apartment house was so shaken and shattered by the jar and concussion caused by such improper and unnecessary and excessive charges and high explosives used in the blasting, that the windows thereof - were broken, the ceilings were cracked and in danger of falling, and the brick walls were loosened and shattered and otherwise seriously injured; and that the damage sustained by the plaintiff by reason of the improper manner in which the defendant performed the said contract was $6,000 : for which amount the plaintiff demands judgment.
The defendant demurred to this complaint upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the Special Term, and the plaintiff appeals.
The damage complained of and for which the plaintiff seeks to recover was caused by the negligence of sub-contractors or by the employment of improper and unreasonable methods for blasting by a sub contractor in doing the work required by the sub-contract. ,It is not alleged that this defendant was personally responsible for the method employed by the sub-contractors or for the negligence or improper work done by them. In determining this question we have first to ascertain the true construction of this clause of the contract and just what obligation was imposed on the defendant, and then whether the plaintiff can enforce directly against the contractor the covenants entered'into with the city.
The statute under which this contract was made is chapter 4 of the Laws of 1891, as amended by chapter 752 of the Laws of 1894, chapter 519 of the Laws of 1895, and chapter 729 of the Laws of 1896. That act provided that there should be submitted to the vote
It was further provided that in case it should be determined by a vote of the people to construct this road by and at the expense of the city, then the road or roads so constructed should be and remain the absolute property of the city so constructing it or them, and should be deemed to be a part of the public streets and highways of said city, to be used and enjoyed by the public upon the payment of such fares and tolls, and subject to such reasonable rules and regulations as might be imposed and provided for by the board of rapid transit railway commissioners in said city. (Laws of 1891, chap. 4, § 63, added by Laws of 1894, chap. 752, and amd. by Laws of 1895, chap. 519.) The general plans for the building of this road were • to be made by the board of rapid transit railway commissioners, and were to be transmitted to the common council of the city and
The plans thus provided having been made by the rapid transit railway commissioners, and the general plans approved by the common council, the commissioner's, acting thus under the authority conferred upon them by the Legislature, made, on behalf of the city of New York, a contract to build a railroad which, when constructed, was to be a public highway in the city of New York, to be used and enjoyed by the public upon payment of such fares and subject to such rules and regulations as might be imposed by the board of rapid transit railway commissioners. The only control that the city or its officers of agents had in relation to this contract was the right to approve or disapprove of the general plans for the construction of the road when adopted by the rapid transit railway commissioners. Neither the city nor its agents had authority to prescribe the form of the contract, or the conditions under which the railroad was to be constructed, or to control the action of the rapid transit railway commissioners or the contractors with whom the commissioners had made a contract. The municipal corporation was not a contracting party, except so far as it was bound by the express provisions of the contract made on its behalf by the rapid transit railway commissioners acting under the legislative mandate. Under these conditions it is well settled that the city would not be liable for any negligence of a contractor or sub-contractor in carrying out the contract. The rapid transit railway commissioners, on behalf of the city of New York, however, were required to prepare plans and specifications, and the general plans for the construction of the road were to be approved by the common council, and the only responsibility that rested upon the city was in regard to the general plans for the construction of this road.
Viewed in the light of the object sought to be attained, it seems to me that the only .construction which can be given to this provision of the contract is that thereby it was intended to protect the city so as to impose upon the contractor responsibility for any defect or insufficiency .in. the plans and specifications, and . an obligation to assume all damages caused in the course of the construction of the railroad, in following out the plans and specifications and the con
It is a general rule of the English common law that a stranger to the consideration could maintain no action upon a contract. This was subject to an exception, that where the person to be bene
In Vrooman v. Turner (69 N. Y. 280) Judge Allen said : “ To give a third party who may derive a benefit from the performance of the promise, an action, there must be, first, an .intent by the promisee to secure some benefit to the third party, and second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise or an equivalent from him personally. It is true there need be no privity between the promisor and the party claiming the benefit of the undertaking, neither is it necessary that the latter should be privy to the consideration of the promise, but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties, by which he has a legal interest in the performance of the agreement.”
In Wheat v. Rice (97 N. Y. 296), one Stotenburgh sold to the ■plaintiffs an undivided fourth of certain property, and in consideration thereof the plaintiffs agreed to pay a sum of money and “ to assume and pay one-quarter of the present incumbrance on the property ” and one-quarter of all the indebtedness of the firm of Stotenburgh, Root & Co., of which the said Isaac Stotenburgh was
It is evident, therefore, that this covenant with the city by which the defendant covenanted at his own expense to make good any damage that should in the course of the construction of the rapid transit railroad be done to the foundations, walls or other parts of adjacent buildings or structures, is not an obligation that can be enforced by this plaintiff under the exception to the general rule established by Lawrence v. Fox (supra) and the other cases based upon that decision; for here there is no covenant to pay tó the property owners any sum of money and the covenant is not one by which the defendant undertakes to discharge any legal or equitable obligation of the city to the owners of property abutting on the streets through, which this railway was constructed.
There is another class of cases, however, upon which the plaintiff relies to maintain this action illustrated by Little v. Banks (85 N. Y. 258). In that case, the defendant was a law book publisher who entered into a contract with the State by which he was to publish and sell the reports of the New York Court of. Appeals. The contract provided that the defendant should at all times keep the volumes published for sale at retail at a price named, in one or more law book stores in the city of Albany and the city of New York, and it provided that “ should any other law book seller in either of said cities apply to purchase any of said volumes, the same shall be supplied to such law book seller upon application,” and that for a failure on the part of the defendant “ to keep on sale, furnish and deliver the aforesaid volumes, or any of them, at the price and as hereinabove provided ” the defendant “ shall forfeit and pay * * * the sum of $100 hereby fixed and agreed upon not as a penalty, but as the. liquidated damages suffered by the person or persons aggrieved thereby, the same to be sued for and recovered by the person or persons so aggrieved.” It appeared that the plaintiffs applied on six different occasions for copies of some of the volumes published at the book store of the defendant, which the defendant refused to furnish, and the plaintiffs brought an action for six different sums
It will be seen that, in this case, the liability of the defendant is placed, not upon the principle which authorizes a person not a party to an agreement to enforce a covenant in the agreement for his benefit, but upon the distinctly different proposition that where an individual by' contract with the State assumes to perform a duty beneficial to the public, and fails to perform that duty, any one of the public injured by a failure to perform the obligation entered into with the State is entitled to maintain an action to recover the damages caused by a breach of the obligation assumed in the contract with the State — a position which is essentially different from a right to enforce such a covenant as is here in question. In this contract this defendant agreed that the plans, specifications and contract were sufficient, when properly carried out, to build this road without injury to abutting property; and he covenanted that he would, at his own expense, make good any damage that should in the course of construction be done to such abutting property.
If this cause of action was based upon the fact that these plans, specifications and contract were such that doing the work without fault or negligence on the part of the contractor would cause injury to
There are several cases in the Appellate Division which follow Little v. Banks, relied on by the plaintiff. The first is Cook v. Dean (11 App. Div. 123), decided in the second department in December, 1896. In that case the plaintiff’s intestate met his death by the falling of a temporary drawbridge over .a creek separating Kings and Queens counties. The defendant had entered into a contract with the supervisors of Kings and Queens counties for the construction of a permanent bridge over the creek, and also for the construction of. a temporary structure, which fell, the latter to be used by the general public until the new bridge should be completed ; and it was there provided that the defendant “ shall and hereby agrees to keep the above specified structure in good repair during the progress of the work on the main structure and until directed to remove the same by the engineer.” The defendant made a sub-contract for the erection of the temporary structure, and entered, upon and assumed the duty of keeping it in repair after it was erected. And it was held that, under these circumstances, the defendant became liable for a neglect of duty in connection with the obligation assumed, and such neglect created a right of action in favor of the person who suffered injury therefrom in consequence
The case of Glens Falls Gas Light Co. v. Van Vranken (11 App. Div. 420) is also relied upon by the plaintiff. In that case the plaintiff maintained a system of gas pipes to supply gas in the village of Glens Falls, and the village authorities made a written contract with the defendants by .which the defendants agreed to construct in the village a system of sewers, a portion of which was to be constructed in streets through which the plaintiff’s gas pipes were placed. In the course of the construction of these sewers, the plaintiff’s gas pipes were broken and injured in many places, and thereby caused the plaintiff damage. This contract contained a provision that the contractors were to make all provisions necessary to maintain and protect gas pipes, and to repair all damage done to sub-structures, and to be responsible for all damage that might .be done to persons or property in the blasting of rock, and if injury was caused, the cost and repair were to be paid, by the contractors; and it was held that the defendants were liable. The question before the court was stated to be, “ Can the defendants shield themselves under this contract and injure plaintiff’s property, and still say that they are not liable under its provisions, which were evidently made for the benefit of the plaintiff and those in a like position ? Can they do acts which without the contract would be wrongful, and with it are authorized only on condition that they compensate the parties injured ? Is their justification complete and available as a defense until they perform as the instrument of justification requires ? ” The statement of this proposition decided by the court shows clearly that the decision is
In all of the cases that have been cited the defendant was held liable because it was his acts of negligence in the performance of a contract with the State or municipal authorities that caused the injury. In none of the cases does the liability rest solely upon a covenant by which the defendant agreed to be responsible for the negligence of others. An allegation that the defendant had violated his contract with the city, or had been negligent in its performance and that the injury to the plaintiff resulted therefrom — the essential fact upon which, in the cases to which attention has been called, the liability of the defendant was based — is .absent in this case. (See Conrad v. Trustees of Village of Ithaca, 16 N. Y. 158; Robinson v. Chamberlain, 34 id. 389; Willy v. Mulledy, 78 id. 310.)
That the defendant is not responsible for the negligent acts of his sub-contractor is settled. (Blake v. Ferris, 5 N. Y. 48 ; Booth v. Rome, W. & O. T. R. R. Co., 140 id. 267; French v. Vix, 143 id. 90.) In French v. Vix it was sought to hold the defendant responsible upon a clause in. his contract with the owner of property by which he agreed “ to become answerable and accountable for any damages that may be done to the property or person of any neighbor or passerby during the performance of said work.” The injury, to recover for which the action was brought, was caused by the negligence of sub-contractors in blasting, which was a part of the work that, the defendant had agreed to do; and the opinion in that case, speaking of the case of Booth v. Rome, W. & O. T. R. R. Co. (supra), says: “We see no reason for reconsidering the points decided in that case, and it must be regarded as a precise authority for the respondents unless they can be held liable for these damages by virtue of the clause in their contract above quoted; and whatever view may be taken of that clause, it cannot impose liability upon them. If it be treated as a contract of indemnity, it could impose no liability because, Henry not being liable, there was nothing to
I can see no reason why this last statement as the law of this State is not controlling, and the judgment must be affirmed, with costs, with leave to plaintiff to amend complaint upon payment of costs in this court and in the court below.
O’Brien, McLaughlin and Hatch, JJ., concurred; Patterson, J., dissented.
See Laws of 1895, chap. 519, amdg. § 5 of statute of 1891.— [Rep.
See Laws of 1896, chap. 729, amdg. § 6 of statute of 1891.— [Rep.
Concurrence Opinion
In considering the proper construction of the contract relied upon in the complaint, it is well to understand, in the first instance, what the precise obligation of the city of New York was in connection with the construction of this work: The tunnel as completed is the property of the city, made so by the provisions of the statute and confirmed by the courts in construction of the same. (Matter of McDonald, 80 App. Div. 210; affd., 175 N. Y. 470.) As the city did not construct the work through its agents and servants, but contracted for its performance, it could not be made liable for negligence in the manner in which the work was performed. The obligation, however, rested upon it to exercise care in providing for proper plans and specifications and a contract in fulfillment of the same which could be carried out without inflicting injury upon the
It is claimed that this is a separate, independent provision of the contract, disassociated from any duty resting upon the city, and having for its sole purpose the indemnity of abutting property owners, and that the liability of the contractor is imposed by its terms to the full extent of providing indemnity to the property owner for any act of negligence either upon his part or upon the part of an independent contractor committed in any manner during the performance of the work. If such be its construction, it is manifest that the obligation imposed is onerous to the extent of being ruinous, for in considering the question the court cannot shut its eyes to the character of the work and its magnitude. It is common knowledge that great doubt existed as to whether a tunnel of this size coiild be constructed without entailing a destruction of the streets, undermining buildings and otherwise inflicting great damage in the process. Such being the fact, it is manifest that if, in addition to liability for, such damage as is necessarily incurred, there is added liability for all acts of negligence no matter by whom committed, language
It is claimed, however, that it was competent for the city to exact indemnity from the contractor for the property owner, and that the obligation having been assumed by the contractor, there is such privity of relation between the owner and the contractor as will permit an enforcement of the covenant if there be a breach of its conditions; that under such circumstances the doctrine of respondeat superior -does not apply, but liability is rested solely upon the terms of the contract and its breach. It is evident that a contract which thus radically changes the law in every essential relation existing between such parties ought to be expressed in clear and certain terms. There are no words in this contract which in express terms make this provision apply to third parties or to the owners of abutting property. The language laid hold of is that the contractor shall be responsible for all damage inflicted “ by the method in which the construction hereunder shall be done.” -It is. quite possible to satisfy this language by limiting the liability imposed thereby to such method used in construction as is required by the terms of the plans and specifications and the contract in furtherance thereof. If, however, the language be entitled to a broader construction than this, there are no words which extend the lam guage to embrace anything beyond personal performance by the contractor. It falls short, in language of imposing liability upon the contractor for acts of negligence by an independent contractor com
Aside from this question, however, it is plainly evident that the primary intention of both parties to the contract was to furnish indemnity to- the city. If we give full force and a literal interpretation to this so-called independent provision we shall easily reach the conclusion that the contractor has been relieved from the primary obli- • gation which the city sought to impose and that instead of standing as an indemnitor to the city he is relieved from liability therefor. After assuming responsibility for damages incurred by the method of construction the clause proceeds with this exception : “ But not including in such damage any damage necessarily arising from proper construction pursuant to this contract or the reasonable use, occupation or obstruction of the streets thereby.” We have already observed that the first clauses of the contract averred in the complaint imposed the absolute obligation and duty upon the contractor as a guarantor of the perfect character of the plans and the assumption of liability upon his. part for the care of the streets and public places. If force is to be given to the quoted provision, then it ' necessarily follows that if damage resulted, to the abutting property owner from a proper performance of the plans and arise from a defect therein the language used relieves the contractor from liability therefor. It then becomes a pertinent subject of inquiry upon
I concur, therefore, with Mr. Justice Ingraham in the opinion which he has delivered in this case.
The judgment should be affirmed, with costs, with leave to the plaintiff to plead over within twenty days on the payment of costs in this court and in the court below.
O’Brien and McLaughlin, JJ., concurred.
Dissenting Opinion
Mr. Justice Hatch in his opinion in this case has fairly stated what, to my mind, is the determinant consideration therein, and that is, whether the provision of the contract that the contractor shall be responsible for all damages which may be done to abutting property or buildings or structures by the method in which the construction shall be done, not including damage necessarily arising from proper construction or reasonable use, occupation or obstruction of the streets, is á separate and independent provision dissociated from any duty resting upon the city and having for its sole purpose the security and idemnity of abutting property owners. If this is not an independent provision, then the views expressed by Mr. Justice Hatch are conclusive; but in my judgment it is independent and provides for conditions, and situations entirely different'from any others contained in the contract relating solely to the indemnity of the city. It seems to me that the provision in question is one which the contractor entered into for the benefit of third parties as one of the terms and conditions upon which the rapid transit commissioners awarded the contract to him. He was contracting for himself, and the question is not one of the relation of inde
Judgment affirmed, with costs, with leave to plaintiff to plead over bn payment of costs in this court and in the court below.